Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

About 14000 years ago, I was a prosecutor in Brooklyn, New York. The last bureau in which I worked was the Homicide Bureau.

The first case that I brought to trial was a drug-deal-gone-sour matter in which the defendant was alleged to have stabbed the deceased. While there was no physical evidence or eye witnesses that pointed to him, and he had no prior record, there was but one particular piece of evidence against him.

He made a statement.

To him, it must have seemed a good idea at the time. He thought he was exonerating himself, or at least, making the killing accidental. You see, he had used a very small knife during the incident. Who could know that such a little thing could actually kill a man?

Well, I suppose we all do….now.

The defense brought a motion to suppress the statement. The motion failed.

As I mentioned yesterday, the issue of making statements is an interesting one. Many people still do not understand it. I often have clients who tell me that the police did not inform them of their Miranda Rights, and so the case must be “thrown out”.

Sorry, it is not that simple.

You probably understand that when we say that there is a motion to “suppress” a statement, we mean that the motion is to render the statement unusable by the prosecution. The theory is that, in getting the statement, the police violated the defendant’s Constitutional Rights against self-incrimination.

“By questioning the suspect without reading him his Miranda Rights, right?”

Yes, that is the basic situation. It is more complicated, though.

First of all, there is a requirement that the defendant be in custody at the time of the questioning. This does not mean that he has to actually be arrested. He just has to reasonably understand that he is not free to leave. In fact, he cannot be free to leave.

That’s the basic law. However, many things come into play. For example, the location of the questioning. If the defendant is sitting at home talking to the officers, he is less likely to be considered in custody than if he is at the police station.

Another issue is at what point in the conversation the alleged confession was made. For example, let’s say the police come to the defendant’s door and, upon opening said door, she states, “look…I shot him, but I was really pissed off!”

The police did not read any Rights, but that was a volunteered explanation. Absent any other issues, it will be admissible.

Even if some initial introductory questions are asked, the statement might still be admissible, It really depends on other surrounding facts such as whether the police were already trying to get a confession. The police do have the right to get their bearings on a scene before they have to invoke the Miranda Rights.

“But if they were supposed to read the rights, and they didn’t, then the case gets dismissed. Right?”

I hear this misconception very often. The answer is “No”. The most that is going to happen is that the prosecution is not going to be able to use the statement against the defendant.

“Well, what if they didn’t get a statement they want to use? What’s their penalty then?”

That’s just the point. There really is no penalty. Often the police do not get a statement they can use and so it turns out not to be an issue.

I should point out that it might become an issue if that statement then leads to more evidence that would not have been discovered but for that statement. That would be the basis for a different suppression hearing and has its own surrounding group of laws to consider.

“What if I was arrested and I made a statement that makes me look good and so the prosecutor does not want to use it? Can I?”

Actually, that is a bit of a tricky issue. The short answer is “no”. At least, not through cross examining the police. Perhaps if you, yourself, want to testify. It is basically considered self-serving hearsay. There are various strategic issues to consider.

“But, then, why can the government use it against me, but I cannot use it to help me?”

There is an exception to the hearsay rules for “Statements by a party-opponent”. In that way, statements by a defendant can be used by the prosecution, but not the defense.

As with most of these issues we discuss, the best thing you can do for yourself, whether you are being investigated or actually charged with a crime, is to get the services of an experienced criminal defense attorney. I don’t just say this blindly, or for self-interest because I am one…it is simply logic. An experienced defense attorney will understand the surrounding laws of any issue and be able to not only guide your defense ship through the troubled waters, but also have developed certain strategies in dealing with the case in general.

By publishing this information on this Web site, the Boston, Massachusetts law firm of Altman & Altman LLP is not claiming to represent any clients or cases mentioned here. The content provided is designed to inform readers and is not intended as legal advice.